What is the first thing any wise gym owner should do when someone new walks in the door? Have that new person sign a liability waiver. A good waiver will state that the participant understands that the activity is dangerous, the participant assumes the risk, and the participant holds the owner/employee/trainer/staff free from liability.
However do liability waivers really work? In legal terms, do liability waivers really hold up in court?
A Common Situation
Here is a common factual scenario. You, or one of your trainers, is training a client one-on-one. Let’s assume the client is deadlifting a barbell off of the ground. Five reps in, the client drops the barbell and complains that his back hurts. Suddenly, he can’t stand up straight, he slowly lowers himself to the ground, and he say, “Oh boy, that was stupid. What did you let me do that?” Your trainer starts panicking and apologizes profusely. However, it isn’t enough, the following week, you receive notice that the client is suing your business for negligence claiming the trainer should have known better and you caused his injury.
The first thing you think is to go find his wavier. Next, you call your insurance company and ask, “will this actually save me?”
Let’s assume, for a moment, the language of your waiver is correct. Next, let’s assume your trainer filled out the required indictment report. Are you protected? Generally speaking, the client has to prove that you were negligent in order to have a legitimate lawsuit. However, there is more one kind of negligence. In most states, the client has to prove that you were grossly negligent.
Two Kinds of Negligence
There are two kinds of negligence in most states: Ordinary Negligence and Gross Negligence.
Ordinary Negligence is the failure to act reasonably in a given situation. This means, would a reasonable person act the same in an ordinary situation? If not, then your company is technically liable. However, most this is where your liability waiver will work. In most states a properly written liability waiver will protect against ordinary negligence. If the client simply hurt his back because he was fatigued, then your waiver will hold up in court.
Gross Negligence is more than a failure to act reasonably. This kind of negligence requires an conscious disregard of another’s right to safety. In other words, you, or your trainer, had certain information about the client that you disregarded. You are liable for Gross Negligence if the client can prove that the disregarded information likely led to his injury. For example, if you, or your trainer, knew that the client had previous issues with his back and was worried about deadlifting. However, you disregarded this information and told him to deadlift anyway, you may be found liable for Gross Negligence. If this is the case, in most states, your waiver will not protect your business.
So, will your waiver work? It all depends on the facts of your individual situation. Before you get into this situation, you need to make sure you have the proper waivers, procedures, and other documents in place. We don’t represent you once you get sued. We help you prevent being sued in the first place.